Declining to adopt a magistrate judge’s report and recommendation that would have allowed the claims to move forward, a federal district court in Pennsylvania dismissed FLSA and state wage law claims that steelworkers’ time spent commuting across the union picket line in vans provided by a strike staffing company was compensable under the Portal-to-Portal Act. Although the steelworkers were hired by the strike staffing company as replacement workers to work during an employer lockout, their commute across the picket line was not a principal activity for which they were employed, nor was it integral and indispensable to a principal activity—which was to make steel. Their argument that an additional principal activity for which the strikebreakers were hired was to serve as economic weapons to put pressure on the union—by crossing the picket line and thus keeping the steelmaking facilities open during the lockout—was not how the court saw it; it was the steelmaking work they performed that put the economic pressure on the union, not the mere act of crossing the picket line (Smith v. Allegheny Technologies, Inc., February 28, 2018, Hornak, M.).
Principal activity was making steel. The steelworkers’ travel time across the picket line was noncompensable commuting time, said the court. The Portal-to-Portal Act clarifies that employers are not required to compensate employees for their commute to and from work, unless that commute is either the “principal activity” for which the employee is employed or is “integral and indispensable” to such a principal activity. Their commute was not the “principal activity,” explained the court. According to the complaint, the steelworkers’ job duties included “pressing buttons, operating a crane, lifting materials on to and off of machines, welding, and other repetitive and rote manual labor tasks.” They were steelworkers, and their job was to make steel—while the regular steelworkers at the employer’ facilities were locked out.
Additional principal activity? But the employees argued that an additional principal activity for which they were hired was “to serve as economic weapons to put pressure on the labor union—specifically, by crossing the union picket line” to keep the facility open during the lockout. To the extent hiring the replacement workers weakened the labor union’s bargaining power, it was because the replacement workers kept the steelmaking business running by making steel, not just because they crossed the picket line. Reasoned the court, if the workers had only crossed the picket line, but they had not worked to produce steel, no additional economic pressure would have been applied. The converse was also true; if the employee could still make steel without anyone crossing the picket line, the economic pressure applied would have been the same “even without the commute by anyone in [the strike staffing company] vans.”
Integral and indispensable. The next question was whether the required commute across the picket line in staffing company vans was “integral and indispensable” to the principal activity of making steel. No, it wasn’t, said the court. Although commuting across a picket line is not “ordinary,” that alone did not make it any more integral to making steel than any other commute. That the replacement workers were required to cross the picket line in the staffing company vans, and safely transporting the replacement workers was a key component of the strike staffing company’s business model, did not change the court’s conclusion.
Required by employer isn’t enough. The Supreme Court’s decision in Integrity Staffing foreclosed any argument that crossing the picket line was compensable because it was required by either the steel company or the staffing company, or because it provided a collateral benefit to them. Regardless of whether an employer required it, “the integral and indispensable test is tied to the productive work that the employee is employed to perform.” The employer could eliminate the requirement that replacement workers cross the picket line in the staffing company’s van and it wouldn’t change the court’s analysis, because it would have no impact on the workers’ ability to make steel.
Staffing company’s business model irrelevant. The replacement workers’ complaint quoted the staffing company’s website, which said, “When you utilize our comprehensive industrial strike staffing services, we will determine your business’s unique needs, locate, accommodate, and train qualified workers, secure safe transportation across picket lines, and follow the appropriate protocol for strike staffing disbandment after a new labor contract has been approved.” They accordingly claimed that because the staffing company was hired to transport the replacement workers across the picket line, their commuting time should be compensable. But that was the staffing company’s principal activity, stressed the court—not the replacement workers’ principal activity. As a result, the court dismissed the workers’ claims under the FLSA.
State-law claims. For the same reasons the complaint failed to state a claim under the FLSA, it failed to state a claim for relief under Pennsylvania state law, Pennsylvania common law, and Oregon state law. Unlike under the FLSA, for travel time to be compensable under the Pennsylvania Minimum Wage Act, travel itself must be “part of the duties of the employee.” And, to be “part of the duties of the employee,” travel must be “more than simply driving to or from a work site.” Employees have to be “performing work-related tasks, aside from travel, during their travel time.” For essentially the same reasons, the court ruled that the steelworkers could not show that crossing the picket line in the strike staffing company’s vans was a “duty” of their employment. The workers’ state law claims, including claims for unjust enrichment, were also dismissed with prejudice.
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